How Is Property Divided During a Divorce?
Iowa is not a community property state; it is an equitable distribution state. This means that when a couple is divorcing, their shared property must be divided fairly and equitably. Equitable distribution does not mean that it must be divided evenly or 50/50. Instead, the focus is on developing a property division agreement that is fair to both parties. It is also important to note that the property division process also includes debt division. Property that is not subject to the property division process includes property acquired before the marriage, inheritance, and gifts.
Factors That May Contribute to Property Division Decisions
When making property division determinations, the courts consider a wide range of factors and look at the couple’s situation holistically to determine what is fair. Consequently, there is no hard and fast rule to how property will be divided, and it will be different for every family.
In Iowa, property division guidelines are found in the Iowa Code § 598.21. Under this code, the following may be considered when making property division decisions:
- The length of the marriage
- What property each party brought into the marriage
- Age and physical well-being of both parties
- The income and earning capacity of each party
- Whether one party contributed to the education, training, or increased earning power of the other party
- How each party contributed to the marriage
- Other economic circumstances particular to the divorcing couple, such as the existence of pensions, retirement funds, or investment accounts.
Quantifying Homemaking and Childcare Contributions
Under this statute, when considering how each party contributed to the marriage, the courts will ascribe an “appropriate economic value to each party’s contribution in homemaking and childcare services. Similarly, the courts will also consider whether there is value in awarding the family home to the parent who has primary custody of any minor children and/or granting them the right to remain in the family home for a specific period.
To learn more about how property division is handled in Iowa, review our blog “Factors for Dividing Property Upon Divorce in Iowa.”
Ways to Protect Separate Property During a Divorce
Separate property is property acquired by an individual prior to their marriage or that which was inherited or received as a gift. When going through a divorce, this separate property is not subject to property division. However, many people are concerned about ensuring that this separate property is protected in case the unforeseeable happens and they divorce.
When it comes to protecting separate property, you have a few options. The first thing you should do is ensure that all separate property is kept separate – do not commingle separate property with marital property. Do not use separate property for marital expenses, do not place separate property into a joint account with your spouse, and do not allow your spouse to make contributions to separate property (such as making mortgage payments on a property you purchased before marriage).
Keep reading for more information on protecting separate property.
Marital Agreements
Another way to protect your separate property is to establish a prenuptial or postnuptial agreement, depending on when you gained the separate property. If you are not yet married, your best option is to develop a prenuptial agreement, identifying the property as separate. With a prenuptial agreement, you and your future spouse can mutually agree that specific assets (or even specific debts) will remain separate from marital property and will not be subject to property division in the event of a divorce.
If you receive an inheritance, gift, or otherwise acquire property that you want to be kept separate after your marriage, you can develop a postnuptial agreement in which you both mutually agree that that property will be kept separate, similar to a prenuptial agreement. Regardless of what type of marital agreement you go with, you should work with an experienced attorney to ensure that the agreement is legally sound.
Note: when developing a marital agreement, both parties should have their own legal counsel. This can help guarantee that both of your best interests are being represented and can help increase the likelihood that the courts will acknowledge and uphold your agreement as legally valid if the time comes. Without adequate legal representation for both parties, the courts may throw out the agreement.
Trusts
Finally, you may also be able to protect your separate property by placing it in a trust. This is a good option for people looking to protect an inheritance for future generations or who want to protect specific property for children that they do not share in common with their current spouse. There are many different types of trusts, and you should consult with an attorney to determine which option is best for you and your situation.
At Hope Law Firm, we understand how delicate the property division process can be. Our attorneys have helped many couples develop strong marital agreements, and we are highly experienced in representing divorcing individuals during the property division process. We are prepared to use our experience to help you with your situation. Contact our law firm online to schedule a consultation.